# C_2020320EN.01000201.xml

| 28.9.2020 | EN | Official Journal of the European Union | C 320/2 |
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28.9.2020

EN

Official Journal of the European Union

C 320/2

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Order of the Court (Sixth Chamber) of 26 March 2020 (request for a preliminary ruling from the Cour administrative — Luxembourg) — Luxaviation SA v Ministre de l’Environnement

(Case C-113/19) (1)

(Reference for a preliminary ruling - Environment - Scheme for greenhouse gas emission allowance trading - Directive 2003/87/EC - Penalty for excess emissions - No exculpatory cause in the event of actual holding of non-surrendered allowances, unless force majeure - No possibility of varying the amount of the penalty - Proportionality - Articles 20, 41, 47 and Article 49(3) of the Charter of Fundamental Rights of the European Union - Principle of the protection of legitimate expectations)

(2020/C 320/02)

Language of the case: French

Referring court

Cour administrative

Parties to the main proceedings

Applicant: Luxaviation SA

Defendant: Ministre de l’Environnement

Operative part of the order

| 1. | Articles 20 and 47 and Article 49(3) of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding there being no possibility for the flat-rate penalty provided for in Article 16(3) of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, to be varied by a national court. |
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1.

Articles 20 and 47 and Article 49(3) of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding there being no possibility for the flat-rate penalty provided for in Article 16(3) of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, to be varied by a national court.

| 2. | Article 41 of the Charter of Fundamental Rights of the European Union must be interpreted as not applying to the issue of whether it is obligatory for Member States, and not merely optional for them, to introduce warning, reminder and advance-surrender mechanisms allowing operators acting in good faith to be fully informed of their surrender obligation and thus not to run any risk of a penalty under Article 16(3) of Directive 2003/87, as amended by Directive 2009/29. |
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2.

Article 41 of the Charter of Fundamental Rights of the European Union must be interpreted as not applying to the issue of whether it is obligatory for Member States, and not merely optional for them, to introduce warning, reminder and advance-surrender mechanisms allowing operators acting in good faith to be fully informed of their surrender obligation and thus not to run any risk of a penalty under Article 16(3) of Directive 2003/87, as amended by Directive 2009/29.

| 3. | The principle of the protection of legitimate expectations must be interpreted as not precluding the imposition of the penalty provided for in Article 16(3) of Directive 2003/87, as amended by Directive 2009/29, in a situation where the competent authorities did not warn the operator prior to the expiry of the time limit for surrender, whereas they had done so, without being obliged to, the previous year. |
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3.

The principle of the protection of legitimate expectations must be interpreted as not precluding the imposition of the penalty provided for in Article 16(3) of Directive 2003/87, as amended by Directive 2009/29, in a situation where the competent authorities did not warn the operator prior to the expiry of the time limit for surrender, whereas they had done so, without being obliged to, the previous year.

| 4. | It is for the referring court to assess whether the concept of ‘circumstances constituting force majeure’, within the meaning of paragraph 31 of the judgment of 17 October 2013, Billerud Karlsborg and Billerud Skärblacka (C-203/12, EU:C:2013:664), applies to a situation such as that at issue in the main proceedings. |
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4.

It is for the referring court to assess whether the concept of ‘circumstances constituting force majeure’, within the meaning of paragraph 31 of the judgment of 17 October 2013, Billerud Karlsborg and Billerud Skärblacka (C-203/12, EU:C:2013:664), applies to a situation such as that at issue in the main proceedings.

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(1)  OJ C 148, 29.4.2019.

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